Archive for July, 2007

The law loves the status quo. Courts are often the most “conservative” of the branches of government. By “conservative” I mean in the Edmund Burke sense of seeking to “conserve” that which it deems good about our society and government. I do not mean “conservative” in the sense of the radicalism of the neocons in the last several years. Neocons are a lot more “neo” than “conservative.”

This love the law bears for the status quo fathered a judicial system which creates a myriad of barriers for anyone who wants to use the law to change the status quo. Perhaps you have been injured by a careless driver who slammed into you when he ran a red light. Or maybe you’ve just been fired because you protested being sexually harassed on the job. Maybe you are a Catholic who wants the president’s “Faith Based Initiative” to spend more money on Catholic charities and less on Protestant ones.

In all these situations you want to change the status quo so you sue. You are the plaintiff. But the law loves the status quo. Obsessively, compulsively, deeply. So the law doesn’t want you to win your lawsuit because, if you do win, you will have changed the status quo.

So the law makes it hard for you to win. Here is how.

Imagine that your lawsuit is a boxing match. Under the rules of this prize-fight you, the plaintiff, must get in the ring with your arms tied behind you. The defendant, the one defending the status quo so beloved by the law, gets to hit you as hard as he can, not once, but several times. You are required under the rules to just stand there as he pummels you, trying his level best to knock you out. You are not allowed even to duck as he hits you. This goes on for the first four rounds of the fight. For rounds four and five, one of your arms is untied. You are allowed to ward off blows with that arm but you can’t hit back. If you are still standing; for round six, both your arms are untied and you can actually fight. You are battered, bloody and exhausted but for one round, you get to fight back. This is called the trial. Should you actually win the trial in round six by knocking out the defendant, your arms are retied behind your back and the defendant is awakened and gets to start hitting you again, but this time with only one arm. If you get knocked down now, you lose. But if you stay on your feet, the defendant gets to appeal to another court. The defendant argues that even though you stayed on your feet, you should have fallen down. In the last round, the judges on the court of appeal decide whether you were allowed to keep standing. They can, if they choose, order a brand new fight under the same rules or they can just say the defendant really won even though you knocked him out right in front of the jury, something they were not there to see. Or, they can say you won.

The odds are against you. Because if you win, the status quo changes.

Round one is called, “standing.” If you don’t have it, you cannot proceed in the fight. Now we can get, finally, to those Supreme Court decisions. But, I am leaving town for the weekend and you’ll have to wait until next week.

When the yobbos turned Boston Harbor into a teapot that cold December night in 1773 they were protesting taxation without representation. Notice that they were not protesting taxation; just taxation without representation. Notice also that they were not protesting taxation that they themselves had not approved, only taxes their representatives had not approved. Theoretically, at least, they approved of a government collecting taxes from them and then spending the money however their elected representatives decreed. We can doubt; however, that there was much theorizing going on while they were tossing casks of tea overboard. Ruffians act; intellectuals theorize.

But what happens when an individual citizen (or group of citizens) feels herself aggrieved by her representatives’ choice of how to spend her tax dollars? As President Bush frequently reminds us, it is our money. Are you upset about sending some of your money to the government which is then used to fund a war of which you disapprove or upset that funding for a war of which you do approve is not increased? Don’t want your money used to build roads in wilderness areas or bridges to nowhere or to fund abortion clinics or produce pamphlets about birth control? What can you do except vote for some other representative the next time you get the chance? Specifically, can you go to court and sue to stop your money being spent in a way that is morally abhorrent to you?

The answer is almost certainly no.

Fundamentally, the answer is “no” for two reasons. In the first place, under our system of republican government we empower our elected representatives to make decisions on our behalf. If we don’t like the decisions they make, we are free to vote the scoundrels out the next time around. (Assuming, of course, that the voting system is fair and unrigged.) In the meantime, we are legally bound by their decisions.

The second reason is the utter impossibility of a government making decisions about how to spend our money with which every single one of us agrees. Imagine a legal system where every citizen who disapproves of any appropriation could go to a courthouse and sue the government to stop an expenditure. In a matter of hours, the legal system and the government would grind to a halt. A government that cannot spend money unless every single one of its citizens agrees is a Dodo lurching to extinction.

Which brings me to the case of Hein v. Freedom from Religion Foundation, one of the last cases decided by our Supreme Court before it took its summer vacation.

Actually, I lie. One more entire post needs to precede a discussion of that case. We have to talk about “standing” first. Lawyers, for centuries now, appropriate perfectly good words with perfectly clear meanings and turn them into words that only another lawyer can understand. We call them “terms of art.” It is how we keep the laity at bay.

I really will get to these Supreme Court decisions.

So, stay tuned for our next exciting episode when we’ll see our hero step into a boxing ring for an exciting bout with a lout. . . .

Also note that the Washington Post editorializes today about Henry Aaron and agrees with me. Is that a good thing? Read the editorial here. Read my post here.

In today’s Washington Post is a series of four articles that every informed American citizen ought to take the time to read. Each discusses Islam and America and is written by serious Islamic scholars. If you don’t have the time to read all four, I suggest that — at the very least — you should read the piece by Akbar Ahmed here. For those of you who still are supporters of President Bush, please don’t be put off by the title of the piece. It is full of wisdom for all Americans and says some good things about the President. It is time for us to return to civil dialogue with one another and this piece could help. The other three articles are here, here and here.

I grew up in a small western town. No Blacks lived there. In fact, the first Black person I remember seeing up close was a six-foot eleven inch basketball player. Having never seen a human being that tall before, it was his height I noticed first. Nor did I have a Black friend until I was in college.

But I had a Black hero long before then. Henry Aaron was my favorite baseball player and, because baseball was the only reason for living, my favorite human being. Looking back across all these years I realize I could not have chosen a better hero. Not only did he erase any inchoate racism in me, he also taught me the value of dignity, quick wrists, and skill in your chosen profession. As Barry Bonds is about to hit a number of home runs higher than Mr. Aaron’s I realize that Mr. Aaron also taught the long-term value of not cheating. One of the small ironies of the incompetence at the Justice Department during the Bush administration is the fact that a competent US Attorney in San Francisco would long since have indicted Mr. Bonds for lying to federal investigators and the grand jury and he wouldn’t be playing.

After inflicting all those posts about the school desegregation cases on you, I promised to describe three more Supreme Court decisions handed down before the Court went home for the summer. (You can read the desegregation entries here, here, here, and here.) I promise to be brief. But before we do that, I’ll need to explain the sturm und drang surrounding legal precedents in the common law.

The legal doctrine known as “stare decisis” (“Staring at the Dead”) rests on the idea that the Law should be predictable and efficient. “Predictable” because people ought to be able to rely on previously settled law to arrange their own affairs without placing themselves in legal peril. “Efficient” because a judge deciding a case today ought not have to reinvent the wheel, but instead can rely on what dead judges who pondered the same issue before already decided.

It works pretty well except if you are a judge and you don’t like that earlier case or group of cases. Moreover, if you are a federal judge on any court other than the United States Supreme Court, you took an oath which severely limits your ability to decide a case which is controlled by a Supreme Court decision. You are bound to follow a Supreme Court decision if it controls the result in your case. It’s even worse if you are a district court judge because you not only have to follow Supreme Court decisions but also the decisions of the Court of Appeals in your jurisdiction. You personally know those judges and none of them are as smart as you are. But you are stuck. You have to follow their decisions even when you know they are wrong.

So let’s say you are a trial judge with real, breathing human beings in your courtroom. You’ve heard all the evidence and you’ve heard what the lawyers for both sides have to say. You strongly believe that one side should win, but there is a Supreme Court decision or rule that requires you to decide the case for the other side and you think that is wrong. You have just three choices: You can follow the Rule even though it leads you to a decision you don’t like; you can find another Rule that applies and follow it; or, you can quit. (Not many federal judges quit. That is a lifetime appointment filled with pay, power, and prestige. I did know one who quit after the Sentencing Guidelines became mandatory years ago but he was an exception to the rule that federal judges don’t quit, they die.)

If you happen to be a Supreme Court Justice you have two further choices if you don’t like the Rule. You can vote to overturn it or you can – in the memorable words of Justice Scalia –“beat it to a pulp” and send it back; weakened, miserable and useless. But, if you are a Supreme Court Justice, you got confirmed by the U.S. Senate to your position only because you solemnly assured them that you are a great respecter of stare decisis. Of course, after you were confirmed and sworn in, it slowly dawned on you that you are there for life and can vote to do pretty much whatever you want with those hoary old precedents you don’t much like.

Which now brings us to the last three Supreme Court decisions of this last term which we will discuss here. Tune in next time. . . .

My reader just asked me why Senator Pete Domenici of New Mexico last week announced that he no longer supported the war in Iraq, at least as it is currently being fought, this week voted with the White House to continue fighting it as it is being fought.

The answer is easy. Senator Domenici is against the war when he is in New Mexico and in favor of it when he is in Washington. Probably has something to do with the altitude. That and his belief that no one in New Mexico pays any attention to what he does in Washington, giving him a kind of political immunity.

My reader also just this minute asked me why the judge threw Valerie Plame’s case out of court this afternoon. You can read about that here. The answer has to do with policemen in dark stairways and children pointing water guns at them. Stay tuned.

The White House announced today that it has transferred sixteen of the Guantanamo Bay prisoners to Saudi Arabia, Tony Snow’em, White House Press Secretary said this morning. Mr. Snow’em said it was the first move in executing the President’s long-held view that GITMO should be closed. When asked why the prisoners were taken to Saudi Arabia rather than imprisoned in the United States, Mr. Snow’em said that the Administration was afraid that Alberto Gonzales’ Justice Department was not competent to prosecute them. Read the article here. Said Snow’em, “It’s The Lord of the Flies over there. Nothing but children. The terrorists would be on the streets in days if we left it to the Justice Department to prosecute them. The President has much more confidence in the Saudi Arabia Justice Department.”

The President needs to tell Congress how many more lives he needs to complete the mission in Iraq. Does he need 400 more lives? 1,000? 10,000? Let him go to Congress and get the appropriation.

Sometime around the end of the Vietnam War David Brinkley did a short essay on NBC’s Nightly News. He was standing in Arlington National Cemetery with alabaster white gravestones surrounding and stretching behind him as far as the eye could see. In my memory he ended the essay by suggesting that the next time an American president wanted to lead the nation into war he should have to make the speech not from the Oval Office but from Arlington. It was good advice. If a feckless Congress is going to abdicate its constitutional responsibility to declare war the least they could do is pass a law requiring the president to go to Arlington if he or she wants to take the nation to war.

Now, in the midst of yet another summer of the undeclared but very real Iraq War, Congress – finally awake to a measure of its responsibility – debates. But the debate founders on the shoals of an arcane Senate rule requiring a majority of 60 senators to vote simply to bring a bill to the floor. Thus far too few Republican senators are willing to allow any “up or down” votes on the Iraq war. (Remember the hue and cry about that? All the Republicans and President Bush wanted were “up or down” votes. Not any more.) The stalemate will endure at least until autumn and perhaps beyond. For an excellent summary of the stalemate and the prospects for breaking it, read Peter Baker’s piece in today’s Washington Post here.

This debate which, to be candid, is about little more than how much longer the nation will delay beginning our withdrawal from Iraq, will probably drag on until at least September. It should, at least, be a real debate about the real issue. Let us determine how many more lives the president needs to complete his “plan” for Iraq. Let Congress appropriate the lives and let the president sign the authorization at a signing ceremony at Arlington. We need a death budget for Iraq.

Quantum physicists live in a world of high mathematics, the most abstract of languages. Some of the scientists do; however, attempt to put into words some of what they have learned so the rest of us can have an approximate understanding of it.

One example of that is “Schrodinger’s Cat.” Schrodinger’s mathematics indicated – and subsequent experiments have proven – that elementary particles exist in a “potential” state until they are observed. Mathematically, their wave function collapses at the instant of observation. Schrodinger explained the phenomenon with this example. A cat is placed in a box. There is a poison gas capsule in the box. If a particular isotope decays and emits a radioactive particle, the capsule will break, releasing the poison into the box and the cat will die. If the isotope does not decay, the poison will not be released and the cat will live. There is a 50/50 chance the isotope will emit a particle. In goes the cat and the lid is shut. The box does not have a window and there is no way to determine until we open it whether the cat is dead or alive. While the box is closed the cat is in a state of “quantum indeterminacy”. It is neither alive nor dead but exists with the “potential” of both states. The cat’s wave function will not collapse until we open the box. When we open the box, the cat will either die or not.

In other words, the ultimate reality does not exist until we observe it. We create it by the act of observing.

It is the same with a famous experiment with a single photon of light. Directed at two slits, sometimes the photon goes through the left slit, sometimes through the right slit and sometimes both slits at once, even though it is only one particle. The result depends entirely on which question we ask.

I know this is weird but it has all been proved to be true by repeated experiments.

With that background, I invite you to click here to learn the relationship of Schrodinger’s Cat and Dick Cheney.